Opinion
NO. 03-17-00557-CV
04-19-2018
In the Matter of R. S.
FROM THE DISTRICT COURT OF TOM GREEN COUNTY, 391ST JUDICIAL DISTRICT
NO. D-14-0026-J , HONORABLE BRAD GOODWIN, JUDGE PRESIDING MEMORANDUM OPINION
The district court, sitting as a juvenile court, adjudicated appellant R.S. delinquent after finding that he committed the offenses of aggravated sexual assault of a child and indecency by contact with a child. See Tex. Fam. Code § 54.03(f); Tex. Penal Code §§ 21.11(a)(1), 22.021(a)(2)(B). The court assessed determinate sentences of 20 years on each count and placed appellant in the custody of the Texas Juvenile Justice Department. See Tex. Fam. Code §§ 53.045, 54.04. In one point of error, appellant asserts that the district court erred in allowing one witness during the adjudication hearing to testify that she believed two other witnesses. For the following reasons, we affirm the district court's judgment of adjudication and order of determinate sentence.
Background
Because the parties are familiar with the facts of the case and its procedural history, we do not recite them in this opinion except as necessary to advise the parties of the Court's decision and the basic reasons for it. See Tex. R. App. P. 47.1, 47.4.
In May 2017, the district court held an adjudication hearing on the State's second amended petition that alleged in six counts that appellant had engaged in delinquent conduct. The State sought a determinate sentence based on allegations that appellant had committed aggravated assault of a child and indecency by contact with a child on or around specified dates in 2014 and 2015. The State's witnesses at the adjudication hearing were the investigating detective, the mother of the two victims, and the two victims, who were eleven and thirteen years old at the time of the hearing. The defense's witnesses were appellant, one of his sisters, and his grandmother. At the conclusion of the hearing, the district court found that appellant had engaged in delinquent conduct on four counts—two counts of aggravated sexual assault of a child and two counts of indecency by contact with a child. See Tex. Fam. Code § 54.03(f); Tex. Penal Code §§ 21.11(a)(1), 22.021(a)(2)(B).
At the conclusion of the State's case, the State abandoned the allegations in two of the counts contained in the Second Amended Petition.
At the conclusion of the disposition hearing that followed, the district court assessed determinate sentences of 20 years on each of the four counts and placed appellant in the custody of the Texas Juvenile Justice Department. Appellant filed a motion for new trial, which was overruled by operation of law. This appeal followed.
Analysis
In one point of error, appellant argues that the district court erred in allowing the victims' mother to testify that she believed that her children were telling the truth about their allegations against appellant. Appellant argues that this opinion testimony was inadmissable under Rule 701 of the Texas Rules of Evidence because it was not helpful. See Tex. R. Evid. 701 (addressing opinion testimony by lay witnesses and limiting testimony in form of opinion to testimony that is "rationally based on the witness's perception" and "helpful to clearly understanding the witness's testimony or to determining a fact in issue"). The victims' mother testified as the outcry witness about what her children told her had happened. Relevant to this appeal, when asked whether she believed one of her children, the mother answered:
Article 38.072 of the Texas Code of Criminal Procedure governs the admissibility of certain hearsay evidence in specified crimes against a child younger than fourteen years old or a person with disabilities. See Tex. Code Crim. Proc. art. 38.072. Article 38.072 allows testimony by the first adult in whom a child confides regarding sexual or physical abuse. See id.; Martinez v. State, 178 S.W.3d 806, 810-11 (Tex. Crim. App. 2005). The child's statement to the adult is commonly known as the "outcry," and the adult who testifies about the outcry is commonly known as the "outcry witness." Sanchez v. State, 354 S.W.3d 476, 484 (Tex. Crim. App. 2011).
At first I kind of questioned it. I didn't know what to think, I didn't want to believe it, and when [the other child] came out and told me the same thing, that's when I believed both of them.In addition to arguing that this testimony was inadmissable because it was not helpful, appellant argues that it is impermissible to offer testimony that one witness believes another witness is telling the truth.
Juvenile proceedings are considered civil cases, but they are quasi-criminal in nature. See In re Hall, 286 S.W.3d 925, 927 (Tex. 2009) (noting that juvenile proceedings are considered civil cases "although [they are] quasi-criminal in nature"). They generally are governed by the Texas Rules of Civil Procedure and the Texas Rules of Evidence applicable to criminal proceedings. See Tex. Fam. Code § 51.17; In re R.J.H., 79 S.W.3d 1, 6 (Tex. 2002) ("The Family Code, which governs juvenile delinquency proceedings in Texas, requires that they be conducted under the Texas Rules of Civil Procedure . . . and under Texas Rules of Evidence applicable to criminal proceedings."). Under Texas Rule of Appellate Procedure 33.1(a)(1) and Texas Rule of Evidence 103(a)(1), a party generally must make a timely objection to the admission of evidence to preserve complaint for appellate review. See Tex. R. App. P. 33.1(a)(1) (requiring record to show that specific "complaint was made to the trial court by a timely request, objection, or motion"); Tex. R. Evid. 103(a)(1) (stating that party may claim error in ruling to admit evidence only if party, on record, "timely objects or moves to strike" and "states the specific ground, unless it was apparent from the context"); In re C.O.S., 988 S.W.2d 760, 765 (Tex. 1999) (noting that rule 33.1 of Texas Rules of Appellate Procedure applies to civil and criminal cases).
Appellant concedes that he did not object to the complained-of testimony at the adjudication hearing but asks this Court in the interest of justice to consider his complaint raised for the first time on appeal. We, however, may not do so. See In re L.D.C., 400 S.W.3d 572, 574 (Tex. 2013) (discussing preservation of error in juvenile cases); see also Proenza v. State, ___ S.W.3d. ___, No. PD-1100-15, 2017 Tex. Crim. App. LEXIS 1168, at *8-26 (Tex. Crim. App. Nov. 15, 2017) (discussing error preservation and errors that may be raised for first time on appeal); In re C.O.S., 988 S.W.2d at 765-67 (explaining that criminal law precedent may be instructive in juvenile cases because they are quasi-criminal). Accordingly, we hold that appellant's complaint was not preserved for appellate review. See Tex. R. App. P. 33.1(a)(1); Tex. R. Evid. 103(a)(1).
Further, even assuming that the trial court erred in admitting the complained-of testimony and that error had been preserved, we would conclude that any such error was harmless. See Tex. R. App. P. 44.1(a) (addressing reversible error in civil cases), 44.2(b) (addressing reversible error in criminal cases that is non-constitutional); see also In re L.D.C., 400 S.W.3d at 576 (concluding that there was no reversible error under either civil or criminal standard). In addition to the outcry testimony of the victims' mother, the victims, who were both under the age of seventeen at the time of the offenses, testified and described what appellant did to each of them. See Tex. Code Crim. Proc. art. 38.07 (stating that conviction for sexual assault and indecency by contact with child, among other offenses, "is supportable on the uncorroborated testimony of the victim of the sexual offense" when the victim is "17 years of age or younger"). We overrule appellant's point of error.
Conclusion
Having overruled appellant's point of error, we affirm the judgment of adjudication and order of determinate sentence.
/s/_________
Melissa Goodwin, Justice Before Chief Justice Rose, Justices Goodwin and Field Affirmed Filed: April 19, 2018